Federal Court of Australia

Elfar v Commonwealth of Australia [2025] FCA 245

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be dismissed.

2.    The applicant pay the respondents’ costs of the proceeding.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RANGIAH J:

1    The applicant is serving a sentence of 30 years’ imprisonment for offences involving the importation of cocaine into Australia.

2    In this proceeding, the applicant applies for judicial review of certain conduct and decisions associated with his prosecution, which the applicant alleges were unlawful. The applicant seeks declaratory and other relief. He is self-represented.

3    The first respondent is the Commonwealth of Australia. The second respondent is the Australian Criminal Intelligence Commission, which was known as the Australian Crime Commission (the ACC) at the time of the relevant events. The third respondent is the Chief Executive, Queensland Corrective Services (QCS).

4    The proceeding focuses upon a compulsory examination to which the applicant was subjected by an ACC examiner on 28 October 2010, after the applicant had been charged but before his trial. The applicant’s case asserts that the compulsory examination and various decisions and conduct by the first and second respondents surrounding the examination were unlawful.

5    The applicant’s case against the third respondent concerns the lawfulness of a decision made pursuant to s 69 of the Corrective Services Act 2006 (Qld) (the QCS Act) to produce the applicant for an examination by the ACC examiner.

6    I propose to proceed by summarising the circumstances in which the proceeding has been brought before considering the parties’ submissions.

Background

7    Before commencing this proceeding, the applicant made an application for preliminary discovery. I dismissed that application on 25 November 2022 in Elfar formerly (EGS 21) v Commonwealth of Australia [2022] FCA 1402 (Elfar No 1). In my reasons for judgment, I set out the relevant history of the criminal proceedings, which I will elaborate upon here.

8    On about 12 October 2010, the applicant was charged with importation into Australia of a commercial quantity of a border-controlled drug, namely cocaine, in contravention of ss 11.2A(1) and (2) and 307.1(1) of the Criminal Code 1995 (Cth). Mr Elfar was remanded into the custody of QCS.

9    On 19 October 2010, a summons was issued requiring the applicant to attend a compulsory examination before an ACC examiner. On 28 October 2010, the applicant was produced by the Chief Executive of QCS for the examination and was duly examined (the compulsory examination).

10    The applicant and his co-accused applied to the Supreme Court of Queensland for a stay of the criminal proceedings on the basis that their compulsory examinations were unlawful. On 18 September 2013, Ann Lyons J answered the following preliminary question in R v Elfar, Golding, Sander, Serna and Triplett (No 3) [2013] QSC:

In circumstances where an accused is compulsorily examined or purportedly compulsorily examined by an examiner of the ACC after being charged, is it a fundamental defect in the trial process such that it justifies a stay of the proceedings on indictment?

11    Justice Lyons noted that the applicant and another person were alleged to have collected a cargo of some 400 kg of cocaine about 320 nautical miles off Australia by boat and to have imported the cocaine into Australia. The applicant’s application for a stay relied upon the unlawfulness of his examination by the ACC examiner on the basis of the judgment of the High Court in X7 v Australian Crime Commission (2013) 248 CLR 92. The applicant argued that he had been unlawfully examined after he had been charged and now could not have a fair trial, or alternatively, that the unlawful compulsory examination had caused him prejudice.

12    Justice Lyons observed at [30]:

Whilst the applicants acknowledge that the CDPP has indicated that the Crown Prosecutor has not had access to any of the interviews and that the examinations have been kept separate and isolated from the criminal case, the applicants still argue that the Court could never be satisfied that some information gleaned in the examinations has not been used derivatively in the investigation and preparation of the brief.

13    At this point, it is necessary to outline some relevant provisions of the Australian Crime Commission Act 2002 (Cth) (the ACC Act) in force at the time of the prospective applicant’s compulsory examination. Section 28(1) provided that an examiner appointed under that Act could summon a person to appear at an examination to give evidence. Section 30(2)(b) provided that a person appearing at an examination must not refuse or fail to answer a question that he or she was required to answer by the examiner. Section 30(6) made it an indictable offence for a person to refuse or fail to answer such a question. Section 25A(9) provided that an examiner could direct that any evidence given before the examiner must not be published, or be published only in a limited way. Section 25A(9) further provided that such a direction must be given if the failure to do so might prejudice the fair trial of a person who had been, or might be, charged with an offence.

14    At the time the compulsory examination was conducted on 28 October 2010, the state of the law was reflected in Australian Crime Commission v OK (2010) 185 FCR 258, where a majority of the Full Court of the Federal Court (Emmett and Jacobson JJ, Spender J dissenting) had held that the ACC Act authorised the compulsory examination of a person after being charged, about the subject matter of that charge.

15    However, in X7 v Australian Crime Commission, a majority of the High Court overruled the judgment in Australian Crime Commission v OK. Justices Hayne and Bell (Kiefel J agreeing) held:

70    The relevant provisions of the ACC Act should not be construed as authorising the compulsory examination of a person charged with, but not yet tried for, an indictable Commonwealth offence about the subject matter of the pending charge. Permitting the Executive to ask, and requiring an accused person to answer, questions about the subject matter of a pending charge would alter the process of criminal justice to a marked degree, whether or not the answers given by the accused are admissible at trial or kept secret from those investigating or prosecuting the pending charge.

71    Requiring the accused to answer questions about the subject matter of a pending charge prejudices the accused in his or her defence of the pending charge (whatever answer is given). Even if the answer cannot be used in any way at the trial, any admission made in the examination will hinder, even prevent, the accused from challenging at trial that aspect of the prosecution case. And what would otherwise be a wholly accusatorial process, in which the accused may choose to offer no account of events, but simply test the sufficiency of the prosecution evidence, is radically altered. An alteration of that kind is not made by a statute cast in general terms. If an alteration of that kind is to be made, it must be made by express words or necessary intendment.

16    The judgment in X7 v Australian Crime Commission was delivered on 26 June 2013, long after the compulsory examination of the applicant had taken place.

17    Justice Lyons proceeded upon the basis that the compulsory examination of the prospective applicant was unlawful. The prosecution had not contended to the contrary. Her Honour considered that it was necessary to assess any actual prejudice to the prospective applicant because of his examination. Her Honour’s view was that as the transcripts of the examination were not in evidence, it was impossible to know what had actually transpired, and, for the same reason, the applicant was unable to identify how the conduct of his defence had been hampered. Her Honour also found that it was unknown whether there had been any dissemination of the transcripts contrary to the non-publication and non-disclosure orders. Her Honour concluded that, on the evidence, there was no suggestion of derivative use by the ACC or the Commonwealth Director of Public Prosecutions (the CDPP).

18    Her Honour was not satisfied that X7 v Australian Crime Commission stood as authority for the proposition that any unlawful compulsory examination by an ACC examiner necessarily warrants a permanent stay of the indictment. Her Honour accordingly answered the preliminary question “no”.

19    In Elfar v ACC (No 5) [2014] QSC, Ann Lyons J considered an application by the applicant seeking transcripts of the examinations by ACC examiners of his co-accused. Her Honour noted that the applicant’s counsel had indicated he did not accept that the material was not in the possession of the CDPP because that information had in fact been provided to the CDPP for the purpose of confiscation proceedings against the applicant, even though those proceedings were managed by a separate part of the CDPP’s office. Her Honour was not satisfied that the evidence of the co-accused before the ACC was critical to the prospective applicant’s defence, nor that the interests of justice favoured the release of the transcripts.

20    An appeal from the judgment of Ann Lyons J in Elfar v ACC (No 5) was dismissed by the Queensland Court of Appeal in DBH v Australian Crime Commission [2014] QCA 265.

21    After being found guilty following a 16 day trial, the applicant was sentenced on 13 August 2015 to 30 years’ imprisonment with a non-parole period of 20 years.

22    In R v Elfar, Golding and Sander [2018] 1 Qd R 608, the applicant’s appeal against conviction was dismissed. The applicant argued on appeal that his conviction should be quashed on the basis, inter alia, of having been unlawfully required to give evidence before an ACC examiner after he was charged. In the Court of Appeal, McMurdo JA (Gotterson and Morrison JJA agreeing) rejected the argument that the mere fact of the applicant’s unlawful examination on the subject matter of the charge had resulted in such a departure from the essential conditions of a fair trial that his conviction should be quashed. The Court held that the mere occurrence of an irregularity such as the unlawful examination of the prospective applicant did not of itself give rise to prejudice which could justify the permanent stay of the proceeding. The Court also held that the prospective applicant had not demonstrated actual prejudice or practical unfairness.

23    The applicant also argued before the Court of Appeal that the content of his evidence given to the ACC in the compulsory examination may have been unlawfully disseminated, thereby affecting the fairness of the trial. Justice McMurdo noted that, “it is conceded that the prosecutor at their trial had no knowledge of the content of this material”. The prospective applicant submitted that there was at least a basis for apprehending that full disclosure of communications between the ACC and the Australian Federal Police (the AFP) had not been made and that details of the examinations may have been disseminated to persons who, in some way, had an influence upon the course of the trial. One of the reasons given by the Court of Appeal for rejecting that submission was that the case was ultimately conducted by a prosecutor who had no knowledge of the content of the compulsory examination. The appeal was dismissed.

24    The prospective applicant applied for special leave to appeal to the High Court. That application was rejected in Golding v The Queen; Elfar v The Queen [2020] HCASL 28 on the basis that any appeal would not enjoy sufficient prospects of success to warrant a grant of leave.

25    The prospective applicant commenced civil proceedings in the Supreme Court of Queensland seeking damages based on the illegality of the ACC’s compulsory examination. The presiding judge ordered that the applicant be referred to by a pseudonym and that the file not be available for inspection by anyone save the parties, except upon the order of a judge of the Supreme Court. I will, accordingly, not identify that proceeding. It is enough to observe that the presiding judge held that the immunity conferred by s 36(1) of the ACC Act provided a complete protection for the defendants. The proceeding was accordingly dismissed.

The applicant’s application

26    The applicant’s Further Amended Originating Application states that the application is made under s 11(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) and s 39B(1)(c) of the Judiciary Act 1903 (Cth) for review of the decisions of:

(a)    the Australian Criminal Intelligence Commission made under ss 24A, 25A, 28 and 59A of the ACC Act; and

(b)    the Chief Executive of the QCS under ss 69 and 70 of the QCS Act.

27    Section 7(1) of the ACC Act provides that the ACC is established. Section 7(1A) provides that the ACC may also be known by one or more names or acronyms specified in the regulations. The ACC has been known as the “Australian Criminal Intelligence Commission” since 1 July 2016.

28    Section 57 of the ACC Act operates to require that an application for an order of review under the ADJR Act in respect of a matter arising under the ACC Act be lodged for filing within five business days after the applicant becomes aware of the matter, or within any further period allowed by a court in special circumstances. The applicant accepts that he requires an extension of time in respect of his application under the ADJR Act.

29    In Elfar No. 1, I ruled that the applicant was not entitled to rely upon a number of documents that were subject to Harman undertakings and confidentiality orders made by the Supreme Court of Queensland. The President of the Queensland Court of Appeal has since made an order allowing the applicant to use those documents for the purposes of the present proceeding.

30    The Further Amended Originating Application is expressed to contain nine grounds, but some of them in fact consist of several grounds and others contain what are described as alternative grounds. It must be observed that the applicant’s expression of his grounds makes them quite difficult to interpret.

31    To assist the applicant, the Commonwealth of Australia and the ACC undertook the step of serving a notice under s 78B of the Judiciary Act 1903 (Cth) which reads as follows:

(a)    As understood by the Commonwealth Respondents, the Applicant alleges that the powers in Chapter 2, Part 2, Division 7, subdivision 2 of the Queensland Corrective Services Act 2006 (Qld) and/or Part II, Division 2, subsections 24A, 25A, 28 and 59A of the Australian Crime Commission Act 2002 (Cth) (ACC Act) are inconsistent with the judicial power of the Commonwealth once a person has been charged with an indictable Commonwealth offence (ground 4).

(b)    As understood by the Commonwealth Respondents, the Applicant also alleges that the powers in the ACC Act that authorised a number of identified decision-makers of the Second Respondent to publish and disseminate to the Australian Federal Police and/or Commonwealth Director of Public Prosecutions (CDPP) certain information and documents relating to the Applicant’s examination involve an impermissible encroachment on Ch III of the Constitution once the Applicant had been charged with an indictable Commonwealth offence (ground 7).

32    There has not been any notification of an intention to intervene in the proceeding by any of the Attorneys-General.

Consideration

Premises underlying the applicant’s grounds

33    Before proceeding to consider the application for an extension of time and the grounds of review, it is necessary to discuss two premises that underly and inform each ground.

34    The grounds commence from the premise that the applicant’s compulsory examination was unlawful. That flows from X7 v Australian Crime Commission where it was held that the ACC Act does not authorise, “the compulsory examination of a person charged with, but not yet tried for, an indictable Commonwealth offence about the subject matter of the pending charge”. The judgments of Ann Lyons J and the Court of Appeal in the criminal proceedings proceeded on the basis that the compulsory examination was not authorised under the ACC Act. So, for example, in the Court of Appeal, McMurdo JA held at [101] that, “the mere occurrence of the irregularity of the kind in this case (the unlawful examination, under compulsion, of the defendant on relevant matters) of itself does not give rise to a prejudice which can justify the permanent stay of the proceeding”. It may be noted that the respondents in the present proceedings have not suggested that the applicant’s compulsory examination was lawful. I accept that the compulsory examination was unlawful.

35    The second premise underlying the applicant’s grounds involves sweeping assertions that decisions and conduct of the ACC examiner, members of the Australian Federal Police, the Crown Prosecutor and the Chief Executive were “fraudulent” or done in “reckless disregard” of legal protections afforded to the applicant. The applicant outlined his case at the commencement of his oral submissions as follows:

I bring forth serious complaints of criminal conduct and/or act on ultra vires – the like of fraud, kidnap, grossly unlawful, coercive interrogations, the reckless disregard of a multitude of mandatory, statutory protection mechanisms enacted by both state and Commonwealth parliaments…which were enacted to protect constitutional, enshrined fair trial rights and the most basic of fundamental common law and human rights.

Your Honour, I say – and I say strongly – serious criminal conduct, all of which was for the sole purpose of circumventing and overcoming my asserted common law right to silence and, moreover, for the improper purpose of assisting the investigation and prosecution of my offence as charged.

36    However, the applicant’s submissions and affidavits gave no explanation of any basis for those serious assertions.

37    The applicant explained his purpose in bringing the application as follows:

…if this Court is of an opinion in consideration of the evidence as a whole…that the unlawful post charge coercive examination was held in reckless disregard of the mandatory protection mechanisms of statute and in consideration to those findings ultimately declare those decisions as being grossly unlawful, the Applicant will then…make application to a superior Court by way of a Writ of Certiorari.

38    In the context of the applicant’s submissions, I understand his allegations of “fraud” to be of “red blooded” fraud involving dishonesty: see SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [13]. It is necessary to make clear from the outset that there is no evidence of “fraud” or “reckless disregard” of protections by any of the respondents’ officers.

39    In SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361; 194 ALR 749, the Full Court observed at [45] that:

It is a large step to jump from a decision involving errors of fact and law to a finding that the decision maker did not undertake its task in a way which involves personal criticism.

(See also NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 at [24] (Allsop J)).

Such a leap is entirely unwarranted in the circumstances of this case.

40    When the ACC examiner issued the summons on 19 October 2010, the state of the law was reflected in in Australian Crime Commission v OK, where the Full Court of the Federal Court held that it was not unlawful for a person to be compulsorily examined after being charged, about the subject matter of the charge. The material before the Court demonstrates that relevant officers of the ACC specifically had regard to that judgment. The judgment in X7 v Australian Crime Commission overruling Australian Crime Commission v OK was not delivered until 26 June 2013, more than two years after the compulsory examination of the applicant had taken place. Accordingly, when the ACC’s officers embarked on Mr Elfar’s compulsory examination, they were entitled to do so on the basis that it was lawful; and the Chief Executive of QCS was entitled to proceed on the basis that the summons had been lawfully issued. There is no evidence of any fraudulent or reckless circumvention of the applicant’s rights.

41    Since all of the applicant’s grounds rely upon allegations of “fraud” or “reckless disregard” of the applicant’s rights and those allegations have not been established, the grounds must fail for at least that reason. However, I will, for completeness, proceed to also consider the other issues arising in respect of each of the applicant’s grounds.

The relief sought by the applicant

42    It is necessary to consider the relief sought by the applicant. That relief includes the following:

1.    An order the time limit be dispensed with.

2.    A declaration that each error of administrative decision making under the respective powers’ conferred within the ACC Act and the federalised or accrued jurisdiction of the QCS Act, made out in grounds’ one (1) to nine (9), be pronounced as such.

3.    A declaration that the nature and extent of all errors, as referred to in declaration 2, be collectively situated in accordance with the scale of unlawfulness, that the Applicant submits to the Court.

4.    An order under section 16 (1) (a) of the ADJR Act quashing or setting aside all decisions determined as unauthorised by law on which the decision was made out in grounds’ one (1) to nine (9) and or as affected by the decisions as made out in grounds’ one (1) to nine (9), within the application.

5.    Alternatively to order 4/ an order under section 16 (1) (b) of the ADJR Act, referring the whole matter to the Commonwealth Attorney-General by way of an order under 39 B (1) (a) of the Judiciary Act in the nature of certiorari, to either quash the Applicants indictment and expunge the record of conviction or refer the whole case to the Court.

43    It may immediately be observed that the Court has no power to make any order of the kind sought under the fifth proposed order. The applicant appears to seek an order directing the Commonwealth Attorney-General to quash the applicant’s criminal conviction or to refer the case to an unspecified court. Alternatively the applicant may be seeking an order that the Court quash his criminal conviction. I do not propose to discuss that aspect of the claim for relief any further.

The application for extension of time

44    The applicant requires an extension of time to bring his application for an order of review under the ADJR Act. He does not require an extension of time for his application for relief under s 39B of the Judiciary Act, and the respondents have not submitted that the applicant’s delay forms a basis for the discretionary refusal of such relief.

45    The Court’s discretion to extend the time for an application under s 11(1) of the ADJR Act, as modified by s 57 of the ACC Act, may only be exercised in “special circumstances”. There is no definition of what may constitute “special circumstances”. In some cases, a factor relevant to granting an extension of time may be, “the fundamental importance of the issues sought to be raised by the applicants as to the administration of the [ACC] Act”: AB Pty Ltd v Australian Crime Commission (2009) 175 FCR 296 at [7].

46    In Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 403 ALR 604, Gordon, Edelman and Steward JJ observed at [52] that:

… by imposing a statutory time limit, Parliament has evinced a clear intention to place an applicant who fails to comply with the time limit in a different position to applicants who have complied. As Wilcox J put it in Hunter Valley Developments [Pty Ltd v Cohen], "it is the prima facie rule that proceedings commenced outside [the relevant] period will not be entertained".

47    Their Honours observed at [40] that the factors that may inform an exercise of the discretion to extend time for an application for review are well settled and include:

… the length of the delay; the explanation for the delay; any prejudice to the administration of justice as a result of the delay; and the prospects of the applicant succeeding in the application or the "strength or weakness of the case ... sought to be advanced and the utility of advancing that case”.

48    The applicant’s delay in commencing the proceeding is very substantial. The decisions and conduct he seeks to challenge were made or done between 12 October 2010 and 29 January 2013. The Court of Appeal’s judgment in the applicant’s appeal against conviction was delivered on 11 July 2017. His subsequent application for an extension of time to seek special leave to appeal to the High Court of Australia was dismissed on 12 February 2020. Even then, the applicant delayed for another three years.

49    The applicant seeks to explain his delay by reference to the “constraints and impediments” he faces and “exceptional circumstances” as an inmate within a correctional facility. However, the inconvenience occasioned by the applicant’s incarceration did not stop him from engaging in various earlier court proceedings. The applicant also relies upon the delivery of my reasons for judgment in Elfar No 1 concerning the applicant’s application for preliminary discovery as providing an explanation for his delay. However, that application was premised upon a matter already known to the applicant, namely the unlawfulness of his compulsory examination. The delivery of that judgment does not serve to provide any reasonable explanation of the applicant’s delay.

50    The respondents do not face any specific prejudice as a result of the delay. However, there is a public interest in the finalisation of disputes in a timely way: See Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 at [14] citing Ridgeway v The Queen (1995) 184 CLR 19 at 74-75; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [24]-[25] and [95]; UBS AG v Tyne (2018) 265 CLR 77 at [38] and [69]-[72]. Mr Elfar has argued, or has had the opportunity to argue, the grounds he now seeks to raise in the various criminal and civil proceedings he has engaged in since 2010. That weighs heavily against any extension of time.

51    It is also relevant to consideration of the application for an extension of time that the applicant’s grounds lack merit and the declarations and other relief he seeks lack utility. I have already indicated that there is no evidence of “fraud” or “reckless disregard”, and will discuss the lack of utility in the relief sought by the applicant later in these reasons.

52    There are no special circumstances warranting an extension of time to apply for an order of review under the ADJR Act. The application for an extension of time will accordingly be refused.

53    The lack of merit in the grounds and lack of utility in the relief sought by the applicant is also relevant for the application for relief under s 39B of the Judiciary Act. Those matters warrant refusal of the relief sought by the applicant.

54    I will proceed to consider each ground in turn.

The first ground

55    The applicant’s first ground is expressed as follows:

1.    The first ground is that the decision-maker in exercising the power of the Commonwealth by way of the accrued or federalised jurisdiction of the Queensland Corrective Services Act 2006 (QCS Act), to authorise by law the Applicants removal from custody imposed by way of an involuntary detention Court Order, the decision-maker unlawfully empowered Corrective Service officers the purported power to forcibly remove the Applicant from custody on 28 October 2010 by way of a fraudulently issued section 69 of the QCS Act “Form 11 Court Attendance” notice (Exhibit TE024). The fraudulently issued section 69 of the QCS Act “Form 11 Court Attendance” notice, was issued in the absence of an attendance authority notice from a Court to the chief executive of the Corrective Service facility, advising that the prisoner (the Applicant) is required to be present in the Court, for a particular matter in strict statutory compliance with section 69 (4) (d) of the QCS Act.

OR in the alternative:

The decision-maker in exercising the power of the Commonwealth by way of the accrued or federalised jurisdiction of the QCS Act held reckless disregard of mandatory protection mechanisms conferred under section 70 of the QCS Act. On 28 October 2010 by way of a fraudulently issued section 69 of the QCS Act “Form 11 Court Attendance” notice (Exhibit TE024), Corrective Services induced the Applicant to abstain from doing an act of which the Applicant was lawfully entitled to do (defined as fraud under the definition within 408 C (g) of the Queensland Criminal Code (QCC)), in accordance with the power conferred under subsection (2) of section 70 of the QCS Act, by forcibly removing the Applicant from custody. The forcible removal of the Applicant from custody imposed under an involuntary detention Court Order was for law enforcement purposes, here being the ACC coercive interrogation. If such removal was to occur for law enforcement purposes it must only occur in strict statutory compliance of the power conferred, in accordance with subsection (2) of section 70 of the QCS Act, of where the Applicant has the statutory empowered mandatory right of refusal.

(Emphasis in the original.)

56    The first ground refers to ss 69 and 70 of the QCS Act. Those sections provide (and provided at the relevant times):

69    Transfer to court

(1)    The chief executive must produce a prisoner at the time and place, and for the purpose, stated in a court order or an attendance authority.

(2)    A party to a civil proceeding who requires a prisoner to attend court must pay to the chief executive the expenses for the prisoner’s attendance.

(3)    The transfer of a prisoner to a court must be authorised by an order of the chief executive, even if it is required by a court order or an attendance authority.

(4)    In this section-

attendance authority means—

(a)    a summons under the Justices Act 1886; or

(b)    a notice to appear under the Police Powers and Responsibilities Act 2000; or

(c)    a law list published by a court; or

(d)    a notice from a court to the chief executive advising that the prisoner is required to be present in the court for a particular matter.

civil proceeding does not include—

(a)    a criminal proceeding; or

(b)    a proceeding relating to corrupt conduct alleged against a staff member.

court includes a tribunal or person with power to compel persons to attend before it, him or her.

70    Removal of prisoner for law enforcement purposes

(1)    A person may, in the approved form, apply to the chief executive for a prisoner to be removed from a corrective services facility to another place to enable—

(a)    the prisoner to provide information to a law enforcement agency to help the agency perform its law enforcement functions; or

(b)    a law enforcement agency to question the prisoner about an indictable offence alleged to have been committed by the prisoner.

(2)    The chief executive may authorise the removal of the prisoner only if the prisoner, in the presence of an official visitor, agrees in writing.

(3)    The prisoner may be removed only by a corrective services officer or police officer.

(4)    While the prisoner is absent from the corrective services facility, the prisoner is taken to be in the custody of the chief executive of the law enforcement agency.

57    After the applicant was charged on 12 October 2010, he was remanded into the custody of the Chief Executive of the QCS. On 19 October 2010, the applicant was summonsed to appear at a compulsory examination before an ACC examiner to be conducted on 22 October 2010 and from day to day unless excused or released from further attendance. The examination scheduled for 22 October 2010 was adjourned. On 27 October 2010, an order authorising the applicant’s transfer was made by a delegate of the Chief Executive, and the examination proceeded on 28 October 2010.

58    I understand the first of the alternatives set out in the applicant’s first ground to allege that the order made by the Chief Executive’s delegate under s 69(3) of the QCS Act authorising the transfer of the applicant and the subsequent production of the applicant under s 69(1) for the purpose of the compulsory examination was “fraudulent” because:

(a)    the ACC examiner was not a “court” and there was therefore no applicable “court order or attendance authority” within s 69(1); and

(b)    as the summons issued by the ACC examiner was invalid, the order under s 69(3) was invalid and the production of the applicant under s 69(1) was unlawful.

59    I understand the second of the alternatives in the first ground to allege that the Chief Executive of the QSC acted fraudulently or in reckless disregard of the applicant’s right under s 70(2) to refuse to consent to his removal for the compulsory examination. However, there is no suggestion of any application being made in the approved form for the applicant to be removed from a corrective services facility so s 70 does not appear to have any relevance.

60    The applicant’s only elaboration of the first ground came in his oral submissions, where he submitted that the ACC is “not a court” and is merely a law enforcement body. It is from that submission that I have inferred that the applicant’s first ground asserts in part that there was no “court order or attendance authority” within s 69(1) of the QCS Act.

61    The Chief Executive submits that the initial basis upon which the first ground cannot succeed is that the applicant is not a person who may apply for an order of review under s 5(1) of the ADJR Act. Section 5(1) provides, relevantly:

A person who is aggrieved by a decision to which this Act applies…may apply… for an order of review…”.

62    Section 3 of the ADJR Act defines, “decision to which this Act applies”, as:

…a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition):

(a)    under an enactment referred to in paragraph (a), (b), (c), (d) or (e) of the definition of enactment; or

(b)    by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca), (cb) or (f) of the definition of enactment;

other than:

(c)    a decision by the Governor-General; or

(d)    a decision included in any of the classes of decisions set out in Schedule 1.

63    The word “enactment” is defined in s 3 of the ADJR Act. It is clear that the QCS Act does not come within paragraphs (a), (b), (c), (cb), (d), (e) or (f) of that definition. Under para (ca), an Act of a State can be an “enactment” if it is described in Schedule 3. However, as the QCS Act does not appear in Schedule 3, it does not fall within that definition: see Wecker v Delegate to the President of the NSW Anti-Discrimination Board [2013] FCA 1167 at [13].

64    Since the Chief Executive’s order is not a “decision to which the Act applies”, the applicant is not entitled to apply for an order of review under s 5 of the ADJR Act, and the Court cannot make any order under s 16 of that Act.

65    The Chief Executive also argues that s 39B of the Judiciary Act does not confer jurisdiction on the Court in respect of the applicant’s proceeding against the Chief Executive. Section 39B provides, relevantly:

(1)    Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

(1A)    The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

(a)    in which the Commonwealth is seeking an injunction or a declaration; or

(b)    arising under the Constitution, or involving its interpretation; or

(c)    arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.

66    The decision of the Chief Executive was made under s 69(3) of the QCS Act, which was a Queensland Act. It was not a decision, “arising under any laws made by the [Commonwealth] Parliament”, within s 39B(1A)(c) of the Judiciary Act: see the definition of “Parliament” in s 2B of the Acts Interpretation Act 1901 (Cth).

67    Further, the Chief Executive was not an, “officer…of the Commonwealth”, within s 39B(1) of the Judiciary Act. In Broadbent v Medical Board of Queensland [2011] FCA 980; (2011) 195 FCR 438, Greenwood J held at [100]:

An officer of the Commonwealth is a person appointed by the Commonwealth to an identifiable office, who is paid by the Commonwealth for the performance of their functions under the office and who is responsible to and removable by the Commonwealth concerning the office.

68    Section 33AB(1) of the Acts Interpretation Act 1954 (Qld) provides that, “In an Act, a reference to a chief executive is a reference to a chief executive of a public sector unit”. In turn, “public sector unit”, is defined in Schedule 1 to mean, relevantly, a “department”. Pursuant to s 10 of the Public Sector Act 2022 (Qld), a “department”, “is a department of government declared under s 197”. Section 197(1) provides that, “[t]he departments of government are the entities declared to be departments of government by the Governor in Council by gazette notice”. QCS was established as a department of the government of Queensland by the Public Service Departmental Arrangements Notice (No 4) 2017.

69    Under s 16 of the Public Sector Act, “A chief executive, in relation to a public sector entity, is…for a department—the individual appointed under this Act as the chief executive of the department”. Section 170 provides that, “The Governor in Council may, by gazette notice, appoint chief executives”. Under s 174(1), “a chief executive under this Act must enter into a written contract of employment with the Minister”.

70    It is apparent that the Chief Executive was not appointed by the Commonwealth, was not paid by the Commonwealth and was not removable by the Commonwealth. He was therefore not, “an officer…of the Commonwealth” within s 39(1)(b) of the Judiciary Act. The Court has no power to grant the relief sought against the Chief Executive.

71    The Chief Executive also submits that the substance of the applicant’s first ground is without merit.

72    The applicant submits that the ACC is not a “court”, and there was therefore no relevant “court order or attendance authority” within s 69(1) of the QCS Act. The expression “attendance authority” is defined in s 69(4) to include, “a notice from a court to the chief executive advising that the prisoner is required to be present in the court for a particular matter”. A “court” is then defined to include, “a tribunal or person with power to compel persons to attend before it, him or her”. The question is then whether the ACC examiner who issued the summons had the power to compel the applicant to attend before the examiner.

73    Section 28(1) of the ACC Act provides that an examiner may summon a person to appear before an examiner at an examination to give evidence. Pursuant to s 30(1), a person served with a summons to appear as a witness at an examination before an examiner shall not fail to attend or fail to attend from day to day unless excused, or released from further attendance by the examiner. It is apparent that an examiner appointed under the ACC Act had power to compel a person to attend before the examiner. Accordingly, an ACC examiner was, for the purposes of s 69(1) and (3) of the QCS Act, a “court” which may provide a notice to the Chief Executive advising that the prisoner is required to be present before the examiner for a particular matter. In the present case, that was done by the provision of the summons issued by the examiner to the Chief Executive. The applicant’s argument that there was no relevant “attendance authority” within s 69(1) of the QCS Act must be rejected.

74    In X7 v Australian Crime Commission, it was determined that the ACC Act does not authorise the compulsory examination of a person charged with, but not yet tried for, an indictable Commonwealth offence about the subject matter of the pending charge. Accordingly, the summons issued by the ACC examiner for the applicant to attend a compulsory examination in such circumstances was invalid. However, in the absence of any challenge to the summons at that time, the Chief Executive was entitled to presume that the summons issued by the ACC examiner was valid when making the order under s 69(3) of the QCS Act and producing the applicant under s 69(1): see Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [151] (Hayne J) (and the authorities cited therein). The Chief Executive was required to make the order and produce the applicant for examination in accordance with the summons. The invalidity of the summons did not affect the legality of the decision and conduct of the Chief Executive.

75    The Chief Executive submits that, even assuming there is merit in the first ground, the declarations sought by the applicant ought not be granted because they would be merely hypothetical and advisory.

76    The applicant’s Further Amended Application relevantly seeks against the respondents, including the Chief Executive, a declaration that, “each error of administrative decision making under the respective powers”, conferred within the ACC Act and the federalised or accrued jurisdiction of the QCS Act, made out in grounds’ one (1) to nine (9), be pronounced as such”; and another declaration that, “the nature and extent of all errors, as referred to in declaration 2, be collectively situated in accordance with the scale of unlawfulness, that the Applicant submits to the Court”.

77    In respect of the first ground, it appears that the applicant seeks a declaration to the effect that the order made by the Chief Executive under s 69(3) of the QCS Act and the subsequent production of the applicant under s 69(1) was “fraudulent” and in “reckless disregard” of the applicant’s legal rights. What is meant by the second proposed declaration is entirely unclear, which serves to emphasise that a declaration ought not be made in the terms sought.

78    In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, the plurality held at 582 that the power to grant declaratory relief is:

…confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have “a real interest” and relief will not be granted if the question “is purely hypothetical”, if relief is “claimed in relation to circumstances that [have] not occurred and might never happen” or if “the Court’s declaration will produce no foreseeable consequences for the parties.

79    In Minister for Immigration & Multicultural Affairs v Ozmanian (1996) 71 FCR 1, Kiefel J observed that the grant of a declaration “in circumstances where it is of “doubtful utility”, such as, “a bare declaration, not declaratory of any present right, and amounting only to an acknowledgment of past infringement of a right to procedural fairness”, would rarely be justified.

80    In Duncan v Chief Executive Officer, Centrelink [2008] FCA 56; (2008) 244 ALR 129, Finn J observed at [32] that the discretion to make a declaratory order:

…is confined by the considerations which mark out the boundaries of judicial power hence it must be directed to the determination of legal controversies and not to the answering of abstract, hypothetical, or moot questions or giving advisory opinions. An applicant must demonstrate a “real interest” in a “real question” the answering of which must produce some “real consequences for the parties”.

(Citations omitted.)

81    I already have reached the firm conclusion that the applicant’s first ground is without merit because the Chief Executive’s decision does not enliven s 5 of the ADJR Act or s 39B(1) and (1A) of the Judiciary Act, because the Chief Executive was entitled to proceed on the basis of the validity of the summons, and because there is no evidence of “fraudulent” and “reckless disregard” of the rights of the applicant. To proceed upon an assumption that the allegation of evidence of “fraudulent” and “reckless disregard” have succeeded would be utterly artificial. However, even if it be assumed that there is merit in the ground, the applicant has not demonstrated any foreseeable consequences that would arise from the making of the declarations sought. The declarations would lack utility and would not be made.

82    The principles applicable to the exercise of the Court’s discretion to grant a declaration are also relevant to the discretion under s 16(1) of the ADJR Act and s 39B of the Judiciary Act to refuse to set aside or quash a decision. Such an order would serve no foreseeable purpose and would lack utility. I would not make such an order.

83    The applicant’s first ground must be rejected.

The second ground

84    The applicant’s second ground reads as follows:

2.     The second ground is that the decision maker (Examiner Boulton) the 2nd Respondent when making the decision to authorise by law the coercive examination of the Applicant, which is recorded in writing as set out on the “restricted ACC examination transcript” 28 October 2010 (exhibit TE013), on page 2 at lines 28 to 31, was a decision that was otherwise contrary to law (s. 5(1)(j) of the AD(JR) Act), as it was made in a reckless disregard of mandatory protection mechanisms, in exercising the power conferred under section 28(1) of the ACC Act, in that there was NO ACC summons or attendance notice issued for 28 October 2010, to statutorily authorise by law the abrogation and violation of the Applicants’ asserted common law right to silence.

OR in the alternative

The decision maker (Examiner Boulton) in the making of the decision to authorise by law the coercive examination post charge, was a decision that was not authorized by the enactment in pursuance of which it was purported to be made (s.5(1)(d) of the AD(JR) Act), in exercising the power conferred under section 28(1) of the ACC Act, in that any decision of an administrative character to coercively interrogate the Applicant was affected by an invalid condition precedent or third party fraud, deposed herein at grounds one (1) and four (4).

(Emphasis in the original.)

85    As I understand the second ground, it asserts that there was no valid summons issued by an ACC examiner for the applicant’s examination on 28 October 2010. The argument is that the examiner’s decision to conduct the examination was therefore contrary to law, or alternatively, not authorised by the ACC Act. It is alleged that the decision constituted “third party fraud” and was made in “reckless disregard” of mandatory protection mechanisms.

86    The summons was issued on 19 October 2010, requiring the applicant, “to attend at 2:00pm on Friday 22 October 2010 before an Examiner at Australian Crime Commission… and from day to day unless excused or released from further attendance”. The examination scheduled for 22 October 2010 was adjourned. The examination eventually proceeded on 28 October 2010.

87    The applicant’s argument seems to be that the summons issued on 19 October 2010 was only effective to require his attendance on 22 October 2010, was not effective to require his attendance on 28 October 2010, and therefore that his examination was unlawful. The applicant did not elaborate upon the argument in his submissions.

88    Section 28(1) of the ACC Act provided:

(1)    An examiner may summon a person to appear before an examiner at an examination to give evidence and to produce such documents or other things (if any) as are referred to in the summons.

89    Section 30(1) of the ACC Act provided:

(1)    A person served, as prescribed, with a summons to appear as a witness at an examination before an examiner shall not:

(a)    fail to attend as required by the summons; or

(b)    fail to attend from day to day unless excused, or released from further attendance, by the examiner.

90    The summons required the applicant to attend, not only on 22 October 2010, but also, “from day to day unless excused or released from further attendance”. As the applicant had not been excused or released from further attendance, he was required to attend for examination on 28 October 2010. I do not accept the applicant’s argument that there was, “no summons…issued for 28 October 2010”.

91    Further, even assuming that there was no valid summons, there is no evidence that the conduct of the examiner was “fraudulent” or made in “reckless disregard” of the applicant’s rights.

92    Even upon an assumption that the applicant’s argument is correct, there would be no utility or foreseeable consequence in making a declaration that the examination was thereby unlawful.

93    The applicant argues, as I understand it, that a declaration that the compulsory examination was carried out “fraudulently” or in “reckless disregard” of protective legal mechanisms would be a “first necessary step” in seeking to have his convictions set aside. He argues that such a declaration could ultimately allow him to obtain a writ of certiorari quashing his conviction.

94    One difficulty with the applicant’s argument is that the applicant was convicted of the criminal offences in the Supreme Court of Queensland and his appeal rights have been exhausted by the dismissal of his appeal by the Court of Appeal and the refusal of special leave by the High Court. The Court of Appeal dismissed his appeal despite accepting that his examination was unlawful. The applicant has not explained how a declaration by this Court that his examination was unlawful could possibly assist him in having his conviction overturned. A declaration that the examination was unlawful would produce no foreseeable consequence and should not be made. There would also be an absence of utility in quashing or setting aside the relevant decision.

95    The second ground must be rejected.

The third ground

96    The applicant’s third ground is as follows:

3.    The third ground is that the decision-maker the 2nd Respondent when making the decision to authorise by law the release or dissemination of the Applicants’ post charge coercive examination product (inclusive of the involuntary extracted testimony) to the CDPP, in particular the trial prosecutor and assisting Counsel, which is recorded in writing as set out on the transcripts of Queensland Supreme Court proceedings 29 January 2013 (exhibit TE022 and TE009), was a decision that was otherwise contrary to law (s. 5(1)(j) of the AD(JR) Act), as it was made in a reckless disregard of the Examiners explicit direction in exercising his power conferred of the ACC Act of which is recorded in writing in the restricted examination transcript (exhibit TE013 at page 152 at lines 27 to 31 and page 153 at lines 1 to 2) and the purported authorised by law summons SO416/10, (exhibit TE00l at subsection 3(B)(ii)).

(Emphasis in the original.)

97    On 28 October 2010, the examiner made the following direction:

I direct that the evidence given by you, Terrence Elfar, the contents of documents produced to the Commission during this Examination, any evidence that might enable you to be identified and the fact that you’ve given evidence at this Examination shall not be published except to the Chief Executive Officer, Examiners and members of staff of the Australian Crime Commission.

98    The third ground alleges that the ACC contravened the Examiner’s direction by making a decision to disseminate the transcript to officers of the CDPP and counsel who conducted the prosecution and to AFP officers.

99    In the Court of Appeal, McMurdo JA (the other members of the Court agreeing) held, relevantly:

[106]    It is further argued for Elfar and Golding that the content of their evidence to the ACC may have been unlawfully disseminated, thereby affecting the fairness of their trial. As I have already noted, it is conceded that the prosecutor at their trial had no knowledge of the content of this material. In the written submissions for these appellants, details are provided of communications between the ACC and the AFP in respect of the investigation of these offences. It also appears that there were variations of the non-publication directions by the examiner, by which their evidence was allowed to be disclosed by AFP officers. From this material it is submitted that there is at least a basis for apprehending that full disclosure was not made by the prosecution and that details of the examinations may have been disseminated to persons who had, in some way, an influence upon the course of the trial. Those submissions cannot be accepted. The first reason is that ultimately the case was conducted by a prosecutor who had no knowledge of the content of the evidence to the ACC. The second is that evidence that some AFP officers had, or may have had, knowledge of the content of this evidence to the ACC far from proves a risk that the fairness of the trial was in some way affected. It is not suggested, for example, that the examinations of Elfar and Golding led to the discovery of further and significant evidence. The strong case against them came from what was found in the car and on the boat.

[107]    For these reasons the various arguments by Elfar and Golding, based upon the ACC examinations, should be rejected.

(Emphasis added.)

100    There is in evidence an affidavit of the CDPP “case officer” responsible for dealing with the matter. She deposed that she was not made aware by any means of the content of the examinations of the applicant. That evidence is uncontradicted. In view of that evidence and the findings of the Court of Appeal, the applicant has not demonstrated that the ACC made any decision to authorise the release or disseminate the transcript of the applicant’s examination to any lawyers responsible for the applicant’s prosecution in contravention of the examiner’s direction, nor that any such release or dissemination occurred.

101    Further, the Court of Appeal acknowledged that variations were made to the non-publication directions by the examiner which allowed the applicant’s evidence to be disclosed by AFP officers. There is no evidence of any breach of such directions.

102    Further, for the reasons given in respect of the second ground, even if the third ground were established, there would be no utility in making a declaration of the kind sought by the applicant.

The fourth ground

103    The applicant’s fourth ground is as follows:

4.    The fourth ground is that the decision-makers in the making of any decisions of an administrative character subsequent to the date 13 October 2010 of where it is recorded the Applicant was formally charged with a Commonwealth indictable offence in so far as the 1st and 2nd Respondent when making any decision of an administrative character under their respective enactments subsequent to 13 October 2010 was otherwise contrary to law (s. 5(1)(j) of the AD(JR) Act), in exercising any power conferred under the federalised or accrued jurisdiction under the statutory provisions of Chapter 2, Part 2, Division 7, subdivision 2 of 4 the QCS Act, and any power conferred in Part II, Division 2, subsections 24A, 25A, 28 and 59A of the ACC Act (empowered at October 2010), in that the powers conferred under the respective QCS and ACC Acts are inconsistent with the judicial power of the Commonwealth once a charge was laid and thereby are unconstitutional with respect to any decision made of an administrative character under the respective Acts, subsequent to 13 October 2010.

(Emphasis in the original.)

104    The fourth ground seems to assert that the operation of the powers under s 69 of the QCS Act and ss 24A, 25A, 28 and 59A of the ACC Act after a person has been charged with an indictable Commonwealth offence are inconsistent with the judicial power of the Commonwealth, and unconstitutional. The applicant failed to elaborate upon the ground.

105    In Raibevu v Minister for Home Affairs [2020] FCAFC 35, the Full Court observed at [116]:

It is established that a court should not embark upon the determination of the validity of an Act of Parliament unless it is necessary to do so: Re Patterson; ex parte Taylor (2001) 207 CLR 391 at 473 – 474 (Gummow and Hayne JJ); Attorney-General (NSW) v Brewery Employees’ Union of NSW (1908) 6 CLR 469 at 590 (Higgins J) (“It is only when we cannot do justice, in an action properly brought, without deciding as to the validity of the Act, that we are entitled to take out this last weapon from our armoury” (emphasis added)). This doctrine of judicial restraint in relation to constitutional questions is an aspect of deference between the separate branches of government and reflects a recognition of the solemnity involved in declaring invalid laws made by a representative legislature.

106    The applicant’s proceedings against the Chief Executive are brought under s 5 of the ADJR Act and seeks relief under s 39B of the Judiciary Act. I have already held that those provisions are not engaged in the present case and, in any event, there was no contravention of s 69 of the QCS Act.

107    Further, as has been explained, it was not in dispute before the Supreme Court of Queensland, and there is no issue in the present proceeding, that the applicant’s compulsory examination was unlawful. Even if the applicant were successful in his constitutional argument, there would be no utility in declaring that the provisions he challenges to be unconstitutional.

108    In these circumstances, it is unnecessary to embark upon a determination of the validity of the relevant provisions of the QCS Act and the ACC Act, and the Court should refrain from doing so.

109    Accordingly, the fourth ground must be rejected.

The fifth ground

110    The applicant’s fifth ground is as follows:

The fifth ground is that the decision maker (Examiner Hannaford) the 2nd Respondent when making a decision of an administrative character, as recorded in writing and set out in the ACC Summons S0416/10 issued at 11.49 hrs on 19 October 2010 (Exhibit TE001), for the sole purpose of the Applicant to appear before an Examiner of the ACC on 22 October 2010, the making of that decision was an improper exercise of the power as conferred by the enactment in pursuance of which it was purported to be made (s. 5 (1) (e) of the ADJR Act) in exercising the power conferred under section 24A of the ACC Act. It is evidence the decision maker exercised his personal discretionary power at the direction or behest of another (s. 5 (2) (e) of the AD(JR) Act, as recorded in writing and set out in an email chain between the ACC and AFP on the dates 13 & 14 October 2010 (exhibit TE002), communications between the ACC and AFP Commissioners (Exhibit TE007 highly protected letter) 2 December 2010 and transcripts of proceedings (Exhibit TE017 - Senior ACC officer Florian (ARB 1074 at line [20]), of which confirms the exercising of the power conferred under ss. 24 and 28(1) of the ACC Act was for the improper purpose of being a part of the AFP Operation Collage, so as to assist the AFP in the investigation and prosecution of the offence as charged. Such action is a violation of the power conferred and the mandatory protection mechanisms enacted by Parliament of which must only be used in strict statutory compliance of ss. 24, 28(1), 28(IA) and 28(7) of the ACC Act, as empowered at 19 October 2010.

(Emphasis in the original.)

111    The fifth ground asserts that the decision to issue the summons to the applicant on 19 October 2010 was made at the direction and behest of the AFP for the improper purpose of assisting the AFP to investigate and prosecute the offences with which the applicant had been charged.

112    The applicant relies upon communications between the ACC and the AFP on 13 and 14 October 2010, which is said to provide evidence that the summons was issued for the improper purpose of assisting the AFP in the investigation and prosecution of the offences with which the applicant had been charged. From those documents, it can be accepted that a purpose of the compulsory examination was to provide assistance to the AFP in their investigation. It can also be accepted that since the compulsory examination was conducted after the applicant had been charged, it was not a purpose authorised under the ACC Act and was therefore an improper purpose. That is another way of describing the unlawfulness involved in the compulsory examination.

113    However, the evidence does not establish that the discretionary power to issue a summons was exercised at the direction or behest of the AFP. To the contrary, the evidence demonstrates that it was the ACC which approached the AFP to offer assistance in the AFP’s investigation.

114    Once again, it must be emphasised that the Court of Appeal proceeded on the basis that the applicant’s compulsory examination was unlawful. The applicant’s description of the ACC’s decision or conduct as being for an improper purpose cannot change or otherwise affect the dismissal of the appeal. The making of a declaration that the summons was issued unlawfully would have no utility.

The sixth ground

115    The applicant’s sixth ground is as follows:

The sixth ground is that the decision-maker (Examiner Bolton) the 2nd Respondent when making a decision to coercively interrogate the Applicant of which is recorded inwriting as set out in the restricted ACC examination transcript, on page 3 at lines 1 to 10 (exhibit TE013) and the mandatory ACC Authority to Attend notice (Exhibit TE005), evidences procedures that were required by law to be observed in connection with the making of the decision were not observed (s. 5 (1) (b) of the AD(JR) Act) in exercising the power conferred under s. 25A (7) (a) of the ACC Act. The mandatory power conferred under s. 25A (7) (a) of the ACC Act is to inform the witness (Applicant) of those persons unauthorised by law who were present and unauthorised by law who were clandestinely present at the interrogation hearing on 28 October 2010. It is recorded in the communications between ACC and APP Commissioners (exhibit TE007) and the statement of ACBPS officer Willis made 26 November 2010 (Exhibit TE004 read in-conjunction with exhibit TE005), evidencing other persons unauthorised by law (prosecution investigators) who were present and unauthorised by law (APP investigators) who were clandestinely present and viewing the post charge coercive interrogation hearing. This is a breach of the rules of natural justice in connection with the making of the decision (s.5 (1) (a) of the AD(JR) Act), abstaining the Applicant in exercising his statutory power conferred under s. 25A (7) (b) of the ACC Act.

(Emphasis in the original.)

116    Section 25A(7) of the ACC Act provided:

25A    Conduct of examination

…

(7)    If a person (other than a member of the staff of the ACC) is present at an examination before an examiner while another person (the witness) is giving evidence at the examination, the examiner must:

(a)    inform the witness that the person is present; and

(b)    give the witness an opportunity to comment on the presence of the person.

117    The sixth ground alleges that there were AFP investigators who were clandestinely present at the compulsory examination. This is said to have been a contravention of s 25A(7) of the ACC Act and was also a denial of natural justice.

118    The applicant relies upon a letter from the ACC to the AFP and a statement made by an officer of the Australian Customs and Water Protection Service (ACWPS) made on 26 November 2010.

119    The letter from the ACC to the AFP stated that:

No AFP members involved in the investigation were allowed to be present. However, other officers from the AFP intelligence area were permitted to be present.

120    During the examination on 28 October 2010, the examiner stated that, apart from the applicant’s legal representative, all the other persons who the examiner had granted leave to appear were members of the ACC. There is in evidence a document entitled “Authorisation for Persons to be Present at ACC Examination”, which states, relevantly:

The following named persons who are members of the staff of the ACC request Examiner authorisation, pursuant to section 25A(3) Australian Crime Commission Act 2002, to be present during the ACC examination S0416/10.

121    There are then seven named persons, including four whose “Position/Agency” is described as “AFP”. The examiner signed the document on the same day, evidently to indicate his authorisation of the presence of the named persons.

122    It appears that the four persons described as “AFP” were also members of staff of the ACC. There is no evidence that those four persons were part of the AFP investigative team in relation to the charged offences. Consequently, no contravention of s 25A(7) of the ACC Act is established.

123    In any event, even if there were a contravention of s 25A(7) of the ACC Act or a denial of natural justice, for the reasons already given, there would be no utility in making a declaration to the effect that the compulsory examination was unlawful.

The seventh ground

124    The applicant’s seventh ground is as follows:

7.    The seventh ground is that each decision-maker (ACC officers Stent, Florian, Lind, De-veau, and Bartlett, delegated a power under section 59A of the ACC Act) when making a decision of an administrative character of which was recorded in writing, as set out in the following documents;

7 .1.    A letter dated 29 March 2011 from Lind to the AFP, in which was attached the ACC coercive examination product by way of an “intelligence report” (exhibit TE018);

7.2.    De-veau’s “variation of non-publication directions”, dated 3rd November 2010 and 9th February 2011, (exhibit TE014);

7.3.    As recorded in Court proceeding transcripts on 1 June 2015, pertaining to Stent and Florian (exhibit TE017);

7.4.    Letter of Bartlett, ACC Ref: 10/130441 of 22 November 2010 to the AFP, titled Examination Dissemination (exhibit TE020);

7.5.    Letter of Bartlett, ACC Ref: 10/13029 of 22 November 2010 to the CCDP, titled Examination Dissemination (exhibit TE021);

These aforementioned persons who purported to make the decision[s] did not have jurisdiction to make the decision[s] (s. 5(1) (c) of the AD (JR) Act), subsequent to the date 13 October 2010 where the Applicant was formally charged with a Commonwealth indictable offence, in exercising their delegated powers conferred under the ACC Act in that the power exercised under the power conferred of the ACCAct is an impermissible encroachment on Chapter III of the Constitution, thereby unconstitutional with respect to any decision made of an administrative character, subsequent to the date 13 October 2010.

(Emphasis in the original.)

125    Section 59A of the ACC Act provided:

The CEO may, by writing, delegate to a member of the staff of the ACC who is an SES employee, or an acting SES employee, all or any of the CEO’s powers or functions under this Act.

126    The applicant’s ground concerns the validity of s 59A in the context of variations of the non-publication order made by the examiner of 28 October 2010 on 3 and 30 November 2010, 9 February 2011, 22 August 2011 and 25 May 2012. As I have indicated, the Court of Appeal accepted there had been variations of the non-publication directions by the examiner, by which their evidence was allowed to be disclosed by AFP officers.

127    Section 25A(9) of the ACC Act provided:

(9)    An examiner may direct that:

(a)    any evidence given before the examiner; or

(b)    the contents of any document, or a description of any thing, produced to the examiner; or

(c)    any information that might enable a person who has given evidence before the examiner to be identified; or

(d)    the fact that any person has given or may be about to give evidence at an examination;

must not be published, or must not be published except in such manner, and to such persons, as the examiner specifies. The examiner must give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence.

128    The applicant has not attempted to explain the basis upon which he asserts that s 59A of the ACC Act is inconsistent with Ch III of the Constitution. In any event, it has not been demonstrated that determining the constitutional question would have any utility.

The eighth ground

129    The applicant’s eight ground is as follows:

8.    The eighth ground is that the decision-maker (the Examiner) the 2nd Respondent when making a decision of an administrative character, which is recorded in writing as set out in the ACC Summons S0416/10 issued at 11.49 hrs -19 October 2010 (Exhibit TE00l) was issued for the Applicant to appear before an Examiner on 22 October 2010, this power conferred 6 was an exercise of a discretionary power in bad faith (s. 5 (2) (b) of the AD (JR) Act), in the exercising of the power under sections 24A and 28 (1A) of the ACC Act.

8.1    To satisfy rule 31.01 (2) of the Federal Court Rules (FCRs’) alleging bad faith, it is submitted Examiner Hannaford in exercising his power conferred under s. 28 (lA) of the ACC Act only he must be satisfied that ii is reasonable in all the circumstances to do so. As evidenced Examiner Hannaford exercised his personal discretionary power at the direction or behest of another (s. 5 (2) (e) of the AD (JR) Act). It is recorded in writing as set out in an email chain between the ACC and AFP on 13 to 14 October 2010 (exhibit TE002) and communications 2 December 2010 between the ACC and AFP commissioners (exhibit TE007) of which evidences the exercising of the power conferred here under sections 24 and 28 (1) of the ACC Act was for the improper purpose of being a part of the AFP Operation Collage, so as to assist the AFP in the investigation and prosecution of the offence as charged. Such action is a violation of the power conferred and the mandatory protection mechanisms’ enacted by Parliament of which must only be used in strict statutory compliance of ss. 24, 28(1), 28 (1A) and 28 (7) of the ACC Act, as empowered at 19 October 2010.

(Emphasis in the original.)

130    The applicant appears to use the expressions “bad faith” and “improper purpose” to describe some form of dishonesty, rather than to merely indicate that the ACC examiner acted beyond power: cf SZFDE at [13].

131    As I have indicated, at the time the summons was issued, the Full Court in Australian Crime Commission v OK had held that a compulsory examination could lawfully be conducted about the subject of a charge after the person to be examined had been charged. In circumstances where the examiner acted in accordance with what was then recognised as the law, it could not be said that the summons was issued in “bad faith”, or for an “improper purpose” in the sense that the expressions are used by the applicant. Further, I have rejected the submission that the discretionary power to issue the summons was issued at the direction or behest of the AFP.

132    The eighth ground must be rejected.

The ninth ground

133    The applicant’s ninth ground is as follows:

9.    The ninth ground is the decision-makers’ (ACC Examiner Bolton and assisting legal counsel Bartlett) the 2nd Respondent, when making the decisions’ of an administrative character, these decisions made were induced or affected by fraud (s. 5(1) (g) of the ADJR Act). To satisfy rule 31.01(2) of the Federal Court Rules 2011, alleging fraud it is submitted;

9 .1.    The 2nd Respondent with reckless disregard of mandatory procedures of which are required by law to be undertaken in strict statutory compliance with the powers conferred under section 28(1) of the ACC Act, to perform an authorised by law coercive examination on 28 October 2010, as recorded in writing and set out in the restricted examination transcript (exhibit TE013; page 2 at lines 28 to 31), the Examiner induced the Applicant to do an act, which the Applicant was lawfully entitled to abstain from doing (definition of fraud in accordance with 408 C(g) of the Queensland Criminal Code) by performing an unauthorised by law coercive interrogation on 28 October 2010. This is evidence of where there was “NO Summons” to confer a power to authorise by law the intrusion and abrogation of the Applicants, asserted common law right to silence [Emphasis added].

9.2.    The 2nd Respondent with reckless disregard of mandatory procedures of which are required by law to be undertaken in strict statutory compliance with the powers conferred under s. 25A (7) (a) of the ACC, the Examiner induced the Applicant to abstain from doing an act which the Applicant was lawfully entitled to do in accordance with the powers conferred under s. 25A (7) (b) of the ACC (definition of fraud in accordance with 408 C (g) of the Queensland Criminal Code). This it is recorded in writing and set out in the restricted ACC examination transcript 28 October 2010 (exhibit TE013; on page 3 at lines 1 to 10) where it is evidenced the Examiner failed to inform the Applicant of those persons unauthorised by law who were present and unauthorised by law who were clandestinely present and viewing the coercive interrogation hearing on 28 October 2010, therefore violating the Applicant’s power conferred under s. 25 A (7) (b) of the ACC. As evidenced in writing in communications between ACC & AFP Commissioners (exhibit TE007), and the statement of ACBPS officer Willis 26 November 2010 (exhibit TE004 read in conjunction with TE005). These documents (exhibits TE013, TE007, TE004 and TE005) when considered cumulative or as a whole evidences other persons (investigators) unauthorised by law present and unauthorised by law (AFP investigators) who were clandestinely present and viewing the interrogation hearing.

9.3.    The 2nd Respondent with reckless disregard of mandatory procedures of which are required by law to be undertaken in strict statutory compliance with the powers conferred under section 25A (3) of the ACC made a decision to falsify the “Authority to Attend” notice (a register of attendance document) dated 28 October 2010 (exhibit TE005). This inference of fraud is made out where it is recorded in writing in communications between ACC and AFP Commissioners (exhibit TE007) of which evidences other persons unauthorised by law who were clandestinely present who were not recorded on the mandatory Authority Attendance notice, statutorily required in accordance with s. 25A (3) of the ACC Act.

(Emphasis in the original.)

134    In view of the judgment of the Full Court in Australian Crime Commission v OK, which represented the interpretation of the ACC Act that was correct and binding, it cannot be accepted that the compulsory examination was undertaken with “reckless disregard” of the requirements of the ACC Act.

135    I have already held that there was no contravention of s 25A(7) of the ACC Act.

136    There is no evidence of any decision to falsify the “authority to attend”.

137    The ninth ground must be rejected.

Conclusion

138    The applicant has not established any basis for the making of any of the declarations or consequential relief he seeks.

139    The proceeding must be dismissed with costs.

Associate:    

Dated:    26 March 2025